Being arrested for a crime you did not commit can have lasting consequences, even if the case is dismissed or you are acquitted.
An arrest record can appear on background checks, affect employment, harm professional licensing, and create long-term reputational damage.
California Penal Code 851.8 provides a legal remedy for individuals who are factually innocent. If granted, a Petition for Factual Innocence results in the sealing and eventual destruction of arrest records.
This remedy is far more powerful than an expungement because it removes the arrest entirely from your criminal record.
Your best chance at a positive outcome is with an experienced criminal defense attorney at Cron, Israels & Stark in Los Angeles.
To schedule a consultation, call (424) 372-3112 or use the contact form here.
What Does “Factual Innocence” Mean?
Factual innocence means you did not commit the crime, and there was no reasonable cause to believe you committed it.
Under Penal Code 851.8, you must show that no reasonable person would believe you committed the offense based on the evidence.
This is a higher standard than simply having charges dismissed.
When Can You File a Penal Code 851.8 Petition?
You must file a petition for factual innocence within two years of the arrest date.
You may qualify if you were:
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Detained but not formally arrested
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Arrested but never charged
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Charged, but the case was dismissed
Even if the District Attorney rejected the case (commonly called a DA Reject), the arrest record still exists unless removed.
Why a Dismissal Is Not Enough
A dismissal, acquittal, or DA Reject does not automatically remove your arrest record.
Without filing a Penal Code 851.8 petition:
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The arrest may still appear on background checks
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Law enforcement agencies retain records
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Licensing agencies may access the arrest history
A factual innocence finding legally declares that you should not have been arrested.
The Legal Process for Filing a Factual Innocence Petition
Step 1: Petition the Arresting Law Enforcement Agency
You must first submit a written request to the arresting agency asking them to seal and destroy the arrest record.
The agency has 60 days to respond.
Step 2: Petition the Court if Denied or Ignored
If the agency:
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Denies the request, or
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Fails to respond within 60 days
You may file a petition with the court that has jurisdiction over the case.
The Factual Innocence Hearing
If the matter proceeds to court, a hearing will be scheduled.
Your Burden of Proof
You must initially show that no reasonable cause existed to believe you committed the offense.
Evidence may include:
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Police reports showing inconsistencies
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Surveillance footage
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Phone records
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DNA evidence
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Witness statements
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Alibi documentation
Burden Shifts to the Prosecution
If you meet your initial burden, the prosecution must then demonstrate that reasonable cause existed for the arrest.
The judge will review all evidence before granting or denying the petition.
What Happens If the Petition Is Granted?
If the court finds factual innocence:
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Law enforcement agencies must seal arrest records
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The prosecutor's office must seal case files
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The California Department of Justice must seal related records
For three years:
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Records remain sealed and unavailable to the public
After three years:
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The records must be destroyed
The arrest will not appear on background checks.
This remedy results in the complete erasure of the arrest record.
Difference Between Factual Innocence and Expungement
An expungement dismisses a conviction after probation but does not eliminate the arrest record.
A factual innocence finding:
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Removes the arrest entirely
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Seals and destroys the record
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Declares you were wrongfully arrested
For someone who was falsely accused, Penal Code 851.8 offers far stronger relief.
Related Statutes
Penal Code 849.5 and 851.6
If a person is arrested and released without charges, the arrest may be reclassified as a detention only.
However, even detention records may still exist unless properly addressed.
Why Clearing an Arrest Record Matters
An arrest record can affect:
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Employment opportunities
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Housing applications
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Professional licensing
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Firearm ownership rights
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Educational admissions
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Security clearances
Even when no conviction occurred, the mere existence of an arrest can create serious barriers.
Frequently Asked Questions
How long do I have to file a Penal Code 851.8 petition?
You must file within two years of the arrest date.
Is a DA rejection enough to clear my record?
No. A DA Reject does not remove the arrest. You must file a factual innocence petition.
Will employers see my arrest if the petition is granted?
No. Once sealed and destroyed, the arrest will not appear on background checks.
What standard must I meet?
You must show there was no reasonable cause to believe you committed the crime.
Is this available after an acquittal?
Yes. Even if you were acquitted at trial, you may still petition for factual innocence.
Key Takeaways
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Penal Code 851.8 allows innocent individuals to seal and destroy arrest records.
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You must file within two years of the arrest.
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You must prove there was no reasonable cause for the arrest.
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A granted petition results in sealing and eventual destruction of records.
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This remedy is stronger than expungement.
Speak With a Los Angeles Criminal Defense Attorney
Filing a Petition for Factual Innocence requires careful preparation, legal analysis, and persuasive evidence.
The burden of proof is significant, and success often depends on how the evidence is presented at the hearing.
If you were wrongfully arrested and want to remove the arrest from your record, an early legal consultation is essential. A properly prepared petition can protect your reputation, employment prospects, and future opportunities.
The Los Angeles-based criminal defense attorneys at Cron, Israels & Stark are here to help. Schedule your consultation today.
